Businesses in New York who operate warehouse and logistic centers need to be aware of the recently-enacted Article 21-A of the New York Labor Law that takes effect February 19, 2023. This new law requires warehouse and logistic businesses to disclose all speed quotas and penalties to warehouse distribution employees and provides that speed quotas may not interfere with any statutorily protected meal and bathroom breaks.
Employers Covered by This New Law
This new law applies to “warehouse distribution centers,” which are defined as any business that is classified under the following North American industry classification system (“NAICS”) codes:
- 493 – warehouse and storage;
- 423 – merchant wholesalers, durable goods;
- 424 – merchant wholesalers, nondurable goods;
- 454110 – electronic shopping and mail-order houses; or
- 492110 – couriers and express delivery services
Any warehouse distribution center that, either directly or indirectly, controls the wages, hours and working conditions of 100 or more employees at any single warehouse distribution center, or over 500 or more employees at one or more warehouse distribution centers located in New York are covered by the statute. For purposes of determining whether the worker size threshold is met, one or more organizations that meet the definition of a controlled group of corporations under 26 U.S.C. §1563 will be considered as a single integrated enterprise and all workers under the control of the single integrated enterprise will be counted towards the worker count. Further, each entity within the integrated enterprise will be held jointly and severally liable for any violations of the statute.
Notice of Quotas and Adverse Job Actions
Warehouse distribution centers must provide employees, upon hire or for existing employees by March 19, 2023, a written description of each speed or production quota, to which the employee is subject. The quotas may include the quantified number of tasks to be performed, or materials to be produced or handled within a defined time period. Warehouse distribution centers must also provide employees with notice of any adverse employment actions that may be taken if an employee fails to meet a quota. In the event a quota changes, notice of the new quota must be given within two (2) business day of such change. Each time a business takes an adverse job action against an employee, the employee must be provided with the applicable quota that they failed to meet. Employers may not take an adverse employment action against any employee for failing to meet a quota, unless the quota was previously disclosed to the employee.
Statutorily Protected Break Time
Businesses may not impose a quota that would prevent the employee from receiving any statutorily protected meal or rest period nor deprived of use of a bathroom facility, including a reasonable amount of time to go to and from the restroom.
As a reminder, New York law requires that all employees receive the following meal breaks and rest periods:
Factory Workers are entitled to a 60-minute lunch break between 11:00 a.m. and 2:00 p.m. and a 60-minute meal break at the time midway between the beginning and end of the shift for all shifts of more than six hours starting between 1:00 p.m. and 6:00 a.m. and lasting more than six hours.
A factory includes a mill, workshop, or other manufacturing establishment and includes all buildings, sheds, structures or other places used for or in connection with these establishments. A factory does not include dry dock plants engaged in making repairs to ships, power houses, generating plants and other structures owned or operated by a public service corporation.
Non-Factory Workers are entitled to a 30-minute lunch break between 11:00 a.m. and 2:00 p.m. for shifts six hours or longer that extend over that period and a 45-minute meal break at the time midway between the beginning and end of the shift for all shifts of more than six hours starting between 1:00 p.m. and 6:00 a.m.
All Workers are entitled to an additional 20-minute meal break between 5:00 p.m. and 7:00 p.m. for workdays that extend from before 11:00 a.m. to after 7:00 p.m.
Businesses are reminded that breaks that are 20-minutes are shorter must be paid.
OSHA requires employers to provide all workers with sanitary and immediately-available restrooms. All restrooms must include hot and cold or lukewarm water, hand soap, and warm air blowers or individual hand towels. Waterless hand cleaner and towels/rags are not an adequate substitute for soap. Employees must be provided prompt access to the facilities when needed. In the instances of a production line or when constant coverage is needed, employers need to implement a system for workers to request relief as long as there are sufficient relief-workers to assure the wait is not unreasonably long. When providing restroom breaks, OSHA requires that employers be flexible as health conditions, such as pregnancy or medications taken by employees may require more frequent restroom breaks. Pregnant employees or employees who have health conditions may be protected by the federal, state and local laws protecting disabilities further underscoring the need for employers to be flexible and reasonable when providing employees with adequate restroom breaks.
Recordkeeping Requirements
Businesses must maintain and preserve contemporaneous records of:
-
- Employee’s personal work speed data;
- The aggregated work speed data for similar employees at the same establishment; and
- The written description of the quota provided to each employee.
Businesses must maintain these records for up to three years post-termination of employment.
Current and former employees have the right to request a copy of their own personal speed data, the prior six months of aggregated work speed data for similar employees in the same facility, and copies of the written quota currently in effect or in effect at the time of their termination. This information must be provided at no cost to the employee or former employee. Copies of the quota must be provided within 2 business days and information on work speed data must be provided within 7 business days.
Prohibition Against Retaliation
Employers may not retaliate, discriminate nor take an adverse employment action against any employee for exercising any of their rights protected by this statute. Such protected activity includes: (a) requesting information about a quota or work-speed data; or (b) making a complaint about a quota or any violation of the act.
Any adverse action taken against an employee within ninety (90) days of protecting their rights under the statute will be presumed to be retaliatory. The burden is on the employer to demonstrate by clear and convincing evidence that the adverse employment action was taken: (a) for a permissible reason; or (b) the engaging or attempting to engage in such activity was not a motivating factor in the adverse employment action.
Enforcement
The Department of Labor is tasked with imposing regulations to enforce and implement this act. The Department of Labor is permitted to impose civil penalties to enforce this action. Additionally, the Attorney General may to bring a civil or criminal action for violations of the act.
Any business with questions about the requirements of the Warehouse Worker Protection Act, or about any other compliance questions under the federal, state and local labor laws, should contact the members of Forchelli Deegan Terrana, LLP’s Employment & Labor Practice Group.